Tort Law

Vosburg v. Putney

80 Wis. 523, 50 N.W. 403

Citation: 80 Wis. 523, 50 N.W. 403
Court: Supreme Court of Wisconsin
Date: 17 Nov 1891
Bench: Lyon J (opinion of the court)

Facts

• Andrew Vosburg, the plaintiff, was approximately fourteen years old, while George Putney, the defendant, was nearly twelve years old.
• Both boys were pupils in the same school. While they were sitting in the classroom after the teacher had called the class to order, Putney lightly kicked or touched Vosburg’s leg below the knee.
• Putney did not act out of serious hostility and did not intend to cause physical harm.
• Vosburg had suffered an earlier injury near the same knee. That injury had become inflamed but appeared to have nearly healed before Putney’s kick.
• Following the kick, Vosburg’s leg became seriously diseased. He eventually suffered severe and lasting loss of the use of the leg.
• The jury specifically found that:
o Putney did not intend to harm Vosburg;
o the earlier injury had nearly healed;
o Vosburg was not lame immediately before the kick; and
o Putney’s kick was the exciting cause of the later injury.
• The trial court awarded Vosburg damages of $2,500. Putney appealed, arguing principally that battery could not exist because he had not intended to injure Vosburg. (vLex)

Issue

• Whether a defendant commits battery when he intentionally makes physical contact but does not intend to cause injury.
• Whether Putney’s kick was unlawful even though similar physical contact might be accepted during ordinary playground activity.
• Whether Putney could be liable for the full and unexpected seriousness of Vosburg’s injury.

Rule

• Battery requires an intentional and unlawful physical contact with another person.
• The claimant does not always have to prove that the defendant intended to cause the particular injury that resulted.
• Where the defendant intends the physical act and that act is unlawful in its circumstances, the intention to perform the unlawful act may supply the necessary intention for battery.
• Consent may be express or implied from the circumstances. Ordinary physical contact during games or social interaction may be permitted, but the permission does not extend beyond its context.
• Once an actionable physical wrong causes injury, the defendant must take the claimant as found and may be liable for the full direct consequences, even when the claimant’s unusual vulnerability makes the harm unexpectedly serious.

Application

• Putney deliberately moved his foot and made contact with Vosburg. The touching was therefore not involuntary or accidental.
• The important question was not whether Putney wanted Vosburg’s leg to become seriously damaged. The question was whether Putney intentionally performed the physical act that constituted the wrongful contact.
• Had the boys been playing on the school playground, ordinary kicking, pushing or touching connected with play might have fallen within an implied licence.
• The contact occurred inside a classroom after the teacher had called the pupils to order and lessons had begun.
• In that setting, pupils did not have implied permission to kick one another. Putney’s act violated the order and discipline of the classroom and was therefore unlawful.
• Because Putney intended to make that unlawful contact, the absence of an intention to injure did not prevent the contact from being a battery.
• The jury’s findings also established factual causation. Although Vosburg had previously injured the area, that injury had nearly healed, and he was not lame immediately before the kick. The jury identified the kick as the event that activated the serious condition.
• Putney could not reduce his responsibility by arguing that a light kick would not ordinarily produce such serious consequences. Once the intentional and unlawful touching caused physical injury, he bore the risk that Vosburg was unusually vulnerable.
• This is the basis of the eggshell-skull principle: a tortfeasor cannot insist that the victim should have been stronger or healthier. (vLex)

Conclusion

• The Wisconsin Supreme Court held that the action for battery could legally be maintained even though Putney did not intend to cause harm.
• The kick was unlawful because it occurred in a classroom where no implied permission for that kind of contact existed.
• Putney’s intention to make the unlawful contact was sufficient; an additional intention to produce the ultimate injury was unnecessary.
• The court accepted that the defendant could be responsible for the full consequences caused by the kick despite their unexpected severity.
• However, the particular judgment for Vosburg was reversed and the matter was remanded because of a separate evidentiary error concerning a hypothetical question put to a medical expert. That procedural reversal did not disturb the court’s central battery principles.